October 23, 2012

D.C. Circuit Upholds Immunity Shield for Former President of Colombia

A federal appeals court in Washington today upheld a judge's ruling that Álvaro Uribe Vélez, a former president of Colombia, is protected from having to sit for a deposition as a witness in a suit against a coal mining company. The court's ruling is here.

Gregory Craig of the Washington office of Skadden, Arps, Slate, Meagher & Flom argued in the U.S. Court of Appeals for the D.C. Circuit that Uribe, his client, should not be forced to respond to a subpoena seeking his testimony in a suit against Drummond Co., the Alabama-based coal company.

Craig told a three-judge panel this month that the U.S. Justice Department's assertion of immunity to protect Uribe leaves no role for intrusion by the appeals court. The executive branch, Craig said, decides matters of foreign policy. DOJ lawyers said, among other things, in pursuing immunity for Uribe, that the government was concerned about treatment of American officials abroad.

Terry Collingsworth, a lead lawyer for the plaintiffs in the underlying suit against Drummond, argued in the appeals court that DOJ should not be allowed to decide the facts of whether Colombia, under Uribe's leadership, had improper ties with a State Department-designated foreign terrorist organization.

The underlying suit alleges Drummond advanced business interests through its association with that group, the United Self-Defense Forces of Colombia. Collingsworth sought to speak with Uribe about his ties to the organization. The State Department declared the group a terrorist outfit in 2001.

Drummond’s lawyers argue the company is not liable for alleged actions by a subsidiary that ran mining operations, including the hiring of security teams, in Colombia. The suit against Drummond is pending in U.S. District Court for the Northern District of Alabama.

DOJ lawyers said in court papers in the D.C. Circuit that the plaintiffs "provided no reason for the State Department to conclude that Uribe did not, in fact, combat the AUC, and instead collaborated with that terrorist group." The government's legal team called the allegations against Uribe "unsubstantiated."

In the appeals court, which heard the dispute at a hearing October 10, Collingsworth of Washington's Conrad & Scherer argued that Uribe should not enjoy immunity because the allegations against him are rooted in unlawful conduct, not official state business.

"In this case, the District Court correctly held that the plaintiffs' mere allegations were insufficient to defeat former President Uribe's immunity," the D.C. Circuit panel said in its judgment today.

The appeals court today said it was declining to "decide whether a factual record supporting claims of illegal acts…could ever lead to a different result."

Collingsworth said this month that if the appeals court upholds the shield around Uribe, "then virtually every war criminal could get immunity as long as he retained the title of president while engaging in criminal acts."